ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002466
Complaints for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977.
24th March 2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994.
24th March 2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991.
24th March 2016
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997.
24th March 2016
Date of Adjudication Hearing: 13th September 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
In accordance with Section 80 and/or Section 41(4) of the Workplace Relations Act 2015, Section 8 of the Unfair Dismissals Act 1977, Section 7 of the Terms of Employment (Information) Act 1994, Section 6 of the Payment of Wages Act 1991, Section 27 of the Organisation of Working Time Act 1997 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant was employed by the Respondent from 19th January 2015 to 22nd January 2016 and his monthly rate of pay was €2,166.67c gross and €1,798.34c nett. (€498.66c gross and €413.88c nett per week respectively).
The Complainant was submitting that:
(a) He was unfairly dismissed by the Respondent in breach of his rights under the Unfair Dismissals Acts 1977.
(b) He was not notified in writing of a substantial change in the particulars of the original statement provided to him by the Respondent in breach of his rights and entitlements under Section 5 of the Terms of Employment (Information) Act 1994.
(c) The Respondent had made ‘deductions’ from his wages in breach of the provisions of Section 5 of the Payment of Wages Act 1991 in relation to:
- Alleged unpaid wages from December to January last
- Notice Pay
- Annual leave Pay
- Overtime Pay
(d) That he had not received Sunday Premium payments in relation to Sundays worked in the relevant period in breach of his rights and entitlements under Section 14 of the Organisation of Working Time Act 1997.
Summary of Complainant’s Cases:
Date: Sunday Jan.3rd 2016. Due to unexpected chronic medical circumstances beyond my control, It became clear late on Sunday evening that I would be unable to attend work the following day Mon Jan 4th. I immediately (via text message) informed my immediate named Manager Company Director. The time was approx 9:30pm. I received no reply. I was off for the week. Monday, Jan 11th, 2016. I reported to work as usual at 7am having got the early bus from a named location that morning at 5:30am. The Company Director was standing outside the building. We exchanged New Years greetings and shook hands. He was very amicable. He informed me that it was his first day back also - as he had arranged an additional weeks holiday. I was totally unaware of this and apologized for bothering him. If I'd known he was on extended leave I most certainly would not have disturbed him but instead would have contacted the Managing Director (MD). We proceeded to open the premises and were shortly joined by a named colleague (previously a storeman in the Company - but recently promoted to field merchandiser). The stores were in a mess. They had been working on Saturday. The named colleague seemed nervous. He explained to me that the MD was in a terrible mood. He told me that the Stores Manager had returned to work the previous Monday (Jan 4th) but had been off sick since; that the Company Director had arranged an additional weeks holiday which his colleague was unaware of also and that the Company PA and General Secretary was off on compassionate leave as her mother had died on Christmas Day!! The Company Director had to call his colleague and the previous the stores manager for 27 years off the road to deal with the telephones, office and stores !! The Stores Manager arrived at approx 7:15am and the Secretary arrived as usual at 8am. At approx 9am my colleague and I were at the stores sales counter preparing orders for dispatch, the stores manager was in the bathroom; the Secretary and the Company Director were in the front office. I heard the MD before I saw him, "Where's (the Complainant) !!" he shouted. “Here” I replied "How dare you harass a Director of this Company when he's on holiday !!" Who do you think you are? !!". He continued, "dont you ever dare contact any of my salesmen either !!". I replied, “what do you mean? I did no such thing” The MD immediately directed his attention to my colleague and said “You told me he did !!". My colleague (a Polish national) was flustered and nervous. The MD persisted - "you told me (the Complainant) phoned you !" My colleague explained that I had only ever phoned him once before the Christmas break - and that that was because I was returning a missed call that he had made to me regarding an Open Day I had volunteered to help him with at a named location two Days AFTER we officially broke-up for Christmas. Immediately MD turned his attention back to me and shouted again; "and who the fucking hell do you think you are contacting a Director of this Company at 11:30pm on a Sunday fucking night with some bullshit fucking story!!" I attempted to explain, but was cut off immediately . The MD then said "Go into (the Company Director) and find out exactly what time you sent your bullshit text and get the notes you made at the Open Day - then get up to my fucking office!". I did this. The Company Director told me he had received my text at approx 9:30pm. When I entered the MD’s Office he was pacing and immediately roared "where's my fucking (company) coat. I replied “(the Company Director) asked me for it earlier, he put it is your closet” The MD pulled the coat from the closet saying "I'll have to get that fucking cleaned too!!" I gave him my diary with my notes. He was standing behind hid desk. I was sitting opposite. "What the fuck's this" he said - throwing the dairy on his desk. I realised my glasses were downstairs and suggested I get them to explain the dairy. He told me to "shut the fuck up!!" I tried again “are you going to let me speak?" I asked. “NO! I have no interest in anything you have to say, you’re a fucking bullshitter; you are a liar; a sponger and a cunt !" he responded. From this point on I sat in the chair listening intently maintaining eye contact throughout. He continued.... Again he accused me of "harassing a Company Director" - namely his son and harassing his sales men. I did not respond. He told me that he had been told by five different people that I smelled of alcohol but did not tell me who. I did not respond. He accused me of placing unauthorized company orders with suppliers. I did not respond. All the while he was shouting while standing, constantly referring to me as “a lair and a fucking cunt". I did not respond. The MD summarily banned me on the spot from driving any and all company vehicles - including the fork lift. He also summarily banned me on the spot from having any contact whatsoever with all employees. He also summarily banned me on the spot from having any contact with any person attached to the company - directly or indirectly - whether for business or personal reasons - inside or outside the entire premises. He also informed me that I had already been replaced and that the new man was due to start that same afternoon. I responded to none of the above. Additionally at this point he informed me that the responsibility for projects that he personally had assigned me to, relating to the erection of substantial new company signage throughout the estate, was removed from me. He sent me down to my desk in the stores and told me to bring all my paper work relating to the above up to him. I did this and he took it from me ripped it up and threw it all in his bin. Again I made no comment. Finally, he dismissed me with the instruction to send his son up. I informed his son and returned to my post. Almost immediately my stores phone rang, it was the MD. He told me to send the Stores Manager up to him and this I did. Shortly after that the Stores Manager approached me and told me that he had been ordered to enforce all of the above bans. He was in an extremely invidious position and it was awkward for him. He told me all he could hear was the MD “roaring at you". My colleague meanwhile was preoccupied elsewhere in the stores. Anticipating a possible second assault, I completed the orders I had been working on, then gathered my belongings, politely knocked the MD’s door and entered where he and his son were. He said "what do you want?" I replied - "I’m going home". He replied "Just go". I extended my hand to him; he refused it and repeated "Just go". I also offered his son my hand and he too refused it. I left immediately without comment to any of my colleagues. I felt compelled to remove myself from an extremely aggressive, abusive and threatening environment. I believe I had no other option and that I made the correct decision. I did not leave my job. Needless to say I was and remain extremely annoyed and upset at this entire experience. It is my view that I was the recipient of an entirely, unjustified, wholly untrue and a completely inaccurate barrage of personal insults, threats and accusations, without the opportunity to respond or reply. This assault lasted approximately one hour. I was humiliated and embarrassed in front of my work colleagues, my character and reputation within the company was destroyed and the new promotion I had been promised the week before Christmas of Logistical Supervisor lost.
In early November 2015 I was summoned up to the Managing Director’s Office. He informed me that "something had to be done with my salary”. I didn't fully understand what he meant (he told me he didn't really understand it fully himself) basically he asked me for my contract and explained that it would be ripped-up and a new one issued. He told me that I would be given a new position of Logistics Coordinator. This would effectively mean that I would receive on paper a reduced salary - but an increased take-home pay by way of an accommodation allowance of approximately € 400.00c per month tax free. I gave the Company Director my copy of my contract. He never issued me with a new contract. I received the allowance in December - backdated for twelve months. But had no contract which under the circumstances is awkward.
I took no holidays during my time with the Respondent. Policy was that we get paid on the last Thursday of the month. In December because of Christmas we were paid on 17/12/2015. My pay slip shows my basic pay was 2633.37. My overtime for 61 hours totalling 585.16 (although for that period I recorded time sheets totalling 82 hours for that period which included several Saturdays and one 11 das straight including a Sunday). My payslip also shows a subsistence allowance rebate for the year of €4,800.00, the overall total is €8,018.53. I received €3,733.40. I simply do not understand this at all. Additionally, I received no pay or pay slip on Jan28 2016. The day my job was terminated - I don’t understand why not.
I worked and recorded 82 hours overtime between Nov 26th 2015 and Dec 17th 2015. This included several Saturdays with one period working 13 days straight including one Sunday. My pay was not what was expected and I don’t understand why.
The Respondent elaborated on the above written statement submitted in advance of the Hearing.
The Complainant initially said that he did not leave his job with the Respondent, that he did not resign from his job on 11th January 2016. He said that he removed himself from the workplace, because he did not feel safe there. He said that he then reflected on what had happened.
The Complainant said that on the following day, 12th January 2016 he received email correspondence from the Respondent, which was confirmed by a hard copy delivered on 18th January 2016. This was a very short letter, dated 12th January 2016, and signed by the MD which states:
I was surprised at you walking out yesterday, 11th January 2016.
What I suggest you do is meet with me to discuss and see if we can resolve the situation.
I look forward to your comments.”
The Complainant responded by email of 18th January 2016 in which he stated:
“I acknowledge receipt of your mail dated 12/01/2016. Having used the time to calmly reflect on the events of the previous day 11/01/2016, the following is my considered response.
To an objective observer it may appear as a professional, mature and reasonable attempt from a seasoned managing director with over 40 years experience to resolve some internal personnel issue. However, in my view that would be totally incorrect.
I note your “surprise” as to why I “walked out” and your suggestion “we meet to discuss with a view to resolving the reasons I did so” and especially that you noted that you “look forward to my comments”. It is my view that your “surprise” implies that I simply decided for no apparent reason to walk away from my job – I did not.
I felt compelled to remove myself from an extremely aggressive, abusive and threatening situation outlined below. I believe that I had no other option and that I made the correct decision. I did not resign. It is my view that I was the recipient of a wholly inaccurate, unwarranted and completely undeserved assault.
You …. Subjected me to a prolonged, vocally loud, barrage of sustained verbal abuse, accusations, personal insults and threats starting at the sales counter and culminating in your Office.
You …. Humiliated and embarrassed me in front of work colleagues. You …. Treated me with complete disrespect and contempt and forced me to endure an hour long rant. You …. abruptly, loudly and rudely refused me every attempt to reply, respond or protest. I couldn’t even get my glasses.
You …. Accused me of the following:
Being drunk while at work, I completely deny this.
Of harassing a Company Director while on Holiday, I completely deny this
Of contacting salesmen contrary to Company policy, I completely deny this
Of unilaterally and independently placing unauthorised Company orders, I completely deny this.
I was repeatedly called a “bullshitter, a liar, a sponger and a cunt”
You informed me that you were interviewing for my job that day.
I was summarily banned from having any contact whatsoever with all employees.
I was summarily banned from having any and all contact with persons attached to the Company, directly or indirectly, whether for business or personal reasons.
Projects I was instructed to undertake which were successfully progressing were immediately removed from me, my notes taken, ripped up and thrown in the bin.
When you had finished I was ordered back to work then immediately ‘phoned by you to send my superior to your office. He was subsequently ordered to enforce the above bans.
Anticipating a second assault, I completed the order I had been working on, gathered my belonging and politely re-entered your office to inform you and your fellow director…. That I was leaving for home immediately you replied “just go”. I offered you both my hand, you both refused. I therefore, fail to understand where the element of “surprise” is here.
My view is that on a factual level you are simply wrong. If even ONE of the very serious accusations levelled at me were true than I should have been dismissed instantly, and RIGHTLY SO, but they are not. On a professional level you were wrong. Your behaviour was a disgrace, more akin to a bully than a boss.
On a personal level, I am deeply disappointed and saddened, I have always held (the Company) in the highest regard and considered you and your family with the greatest respect. However, knowing now your true opinion of me is hurtful, particularly when the day prior to breaking up for Christmas you thanked me for my efforts during the year and informed me I was regarded with the highest credibility within the Company – none of this adds up.”
The Complainant said that on 21st January 2016 at 2.47pm he received a further email from the MD, which stated:
“Further to my email dated 12th January 2016, unfortunately you have not contacted me with regards to resolving the issue between you and our Company.
If you do not arrange a time and date to meet in our office to resolve the issue between you and (the Company) within the next 7 days we have no alternative but to terminate your employment”
The Complainant responded by email of 22nd January 2016 at 16.23 stating:
“I acknowledge receipt of your email.
Let me clarify that I have NO issue whatsoever with “The Company” (named). It is an entity, it cannot speak, it cannot accuse, abuse or insult, nor can it issue ultimatums. My issues are with the Company’s MD, who unfortunately has done all of the above.
I therefore respectfully decline your ultimatum in the full knowledge that in in so doing I will undoubtedly face your stated consequences”
While the Complainant initially stated that he did not resign, following some discussion he accepted that the Respondent never directly dismissed him that he did in fact and effect resign his job with the Respondent on 22nd January 2016 and confirmed that he was claiming constructive dismissal.
Based on the foregoing submissions the Complainant submitted the following in relation to the complaints under the 4 Acts as follows:
Unfair Dismissals Act 1977: The Complainant submitted that he had been constructively dismissed by the Respondent. He said that he was put in a position, having been subjected to such behaviour as described in the foregoing that he was not willing to accept the risk of being treated like that again. He said a line was crossed and that no reasonable employee could accept being treated this or be expected to accept such behaviour from the most senior manager in the Respondent Company or to run the risk of it reoccurring.
The Complainant gave evidence of his attempts to mitigate his losses. He said that he did not apply for any other jobs, but instead opted for the ‘self-employed’ option and sought to be retrained in that respect. It was pointed out to the Complainant that this meant he could not be said to have suffered any loss due to the termination of his employment as he was not available for or seeking work and accordingly could be awarded no more than 4 weeks wages in the event of his complaint being successful.
The Complainant sought a finding and a decision that he had been unfairly dismissed.
Terms of Employment (Information) Act 1994: The Complainant said that in November 2015, a substantial change had been made in the terms and conditions of employment as laid down in the original statement/contract of employment provided to him at the commencement of his employment in accordance with the provisions of Section 3 of the Act and that he had not been notified in writing of this change or provided with a fresh written statement/contract of employment as required by Section 5 of the Act. He said that as outlined in the foregoing, that the change made was that he received a reduced salary but received an accommodation allowance of €400.00c per month. The Complainant emphatically denied that he had requested this change in his remuneration package.
The Complainant insisted that he never received a written statement of the changes.
The Complainant sought redress in the form of compensation in accordance with the provisions of Section 7(1) of the 1994 Act.
Payment of Wages Act 1991: The Complainant had submitted a number of complaints as follows:
- Alleged unpaid wages from December ’15 to January ‘16: however in discussion at the hearing the Complainant stated that this related to a tax refund. Following a short discussion the Complainant accepted that a tax refund was not “wages” as defined under the 1991 Act and that accordingly I could not consider that element of his complaints.
- Notice Pay: The Complainant accepted that in a case of constructive dismissal there can be no right to notice pay.
- The Complainant submitted that he did not receive his full accrued untaken annual leave pay at the time of the termination of his employment
- Overtime Pay: The Complainant submitted that he had not been paid all of the overtime due to him the time of the termination of his employment and he provided some general details in that respect.
Organisation of Working Time Act 1997: The Complainant said that he did not receive his entitlements in relation to Sunday working in accordance with the provisions of 1997 Act.
The Complainant said that he worked one Sunday in the relevant period.
The Complainant sought a favourable decision.
Summary of Respondent’s Position:
The Respondent said that they reject each and all of the Complainant’s complaints.
Preliminary Issue: The Respondent submitted that the first question for determination in relation to the complaint under the Unfair Dismissals Acts is whether or not the Adjudicator had jurisdiction to hear that complaint.
The Respondent quoted from Section 2(1)(a) of the Unfair Dismissals Act.
The Respondent said that the Complaint was employed by them as a Stores Person from 19th January 2015. The Respondent said the Complainant left his job with them on 11th January 2016, without giving them any notice. They said that regardless of them requesting that the Complainant return to work and/or meet to resolve matter he refused to do either. The Respondent said that therefore the Complainant’s employment ceased on 11th January.
The Respondent said that on the basis that the Complainant failed to give them any notice of the termination of his employment, the date of dismissal for the purposes of the Acts is the last day that he worked, which 11th January 2016. The Respondent referred to the case of Stamp -v- McGrath (UD1243/83) in which the EAT held that the provisions of Section 1(b) under ‘date of dismissal’ only applies where an employee is dismissed by an employer and not where an employee resigns. The Respondent said that this means the Complainant does not have the necessary 12 months service as required under Section 2(1)(a) of the Act and the Adjudicator does not have the jurisdiction to hear any complaint brought by the Complainant under the Unfair Dismissals Acts.
The Respondent sought that this matter was decided as a preliminary issue.
Unfair Dismissals Acts:
The Respondent said that without prejudice to the above preliminary argument, they would submit that the Complainant’s resignation does not amount to a dismissal as defined in Section 1(1) of the Act, which they quoted from.
The Respondent also referred to and quoted from Daniel O’Gorman -v- Glen Tyre Company Limited (UD2314/2010).
The Respondent said that the Complainant did not raise any grievance prior to leaving his employment on 11th January 2016 and he refused to meet with the Respondent to resolve the matter which was offered to the Complainant by emails of 12th and 21st January 2016 and also in 2 telephone calls.
The Respondent said that the Complainant reports directly to the named CEO/MD of the Respondent. The Complainant was called to the CEO’s office on 11th January 2016, as a result of another named Director’s report that the Complainant had smelt of beer while at work representing the Respondent at a very good customer’s shop while doing an ‘open day’ and also to discuss his unauthorised absence from work after the Christmas Holiday break. During the meeting the Complainant said the smell was from the e-cigarette he was smoking. The Director had received this reply before and he asked the Complainant to change whatever caused the smell. At this point the Complainant became very irate and said to the Director that whatever he was smoking was his business. The Director asked the Complainant to get some information from his supplier of e-cigarettes or any other supplier of e-cigarettes as to what is the product that gives off the smell of alcohol, to which the Complainant agreed.
The Director did request the Complainant at this meeting not to drive any forklift trucks, cars or vans until the source of the smell of beer was clarified. The Respondent said that at no time was the Complainant accused of being drunk at a work, but was reported as smelling of beer, which was being investigated.
The Respondent said that the Complainant had sent a text to the Director on 3rd January 2016, stating that he would not be in the next day. The Director replied to the Complainant stating “on holidays contact (the MD). The Complainant did not contact the MD and he did not show up for work for the entire week without any further contact. During the meeting on 11th January, the Director asked the Complainant why he had contacted him rather than the MD as MD was his direct line manager, the Complainant had no answer. The Director then asked why he didn’t contact work again in relation to his absence for the remainder of the week. The Complainant stated that he did not receive the text from the Director and he assumed when he heard nothing that it was okay not to come in.
The Respondent said that during the meeting on 11th January, the Complainant was asked not to contact the sales staff directly as all sales were to go through the MD. The Respondent said that this was not any form of sanction, but the normal course of business. The Complainant was also asked to refrain from placing unauthorised orders as he had done on 17th December 2015. The Complainant was well aware of the procedure in relation to placing an order and the required authorisations, but he ignored the procedures in December and obtained 2 pop-up banners that were not needed.
The Respondent said it is denied that the Complainant was banned from having contact whatsoever with all employees attached to the Company. It was also denied the MD informed the Complainant that he was being replaced that same day. In fact, the Complainant’s job remains vacant to date. The MD did not throw the Complainant’s notes in the bin; these notes are still on the MD’s desk and are considered by him as useful. It was denied that the MD raised his voice at the Complainant during the meeting or at all, nor did he use abusive language towards the Complainant. The meeting was between the Complainant and the MD and therefore it was denied that the Complainant could have been in any way embarrassed in front of his colleagues by the contents of the meeting as alleged by him.
The MD told the Complainant to go back to work when he saw the Complainant getting agitated and he told him that they would discuss this at a later stage when the Complainant was less agitated. The Complainant returned to work for approximately 30 – 40 minutes. The Complainant then ‘barged’ into an end of the year management meeting and he said that was leaving and going home. The MD asked him to come back later when the management meeting was over, but the Complainant said he was going and the MD said ‘okay’. At not time did Complainant extend his hand to shake to either the MD or the other Director’s hand before leaving.
On the following day the MD sent the Complainant a letter by email and post seeking to meet him to resolve matters. The Respondent said that however, the Complainant sent an abusive response to the MD on 18th January 2016, setting out a number of false allegations.
The MD ignored the content of this email and on 21st January 2016 he sent the Complainant a further request to arrange a meeting to resolve the issue and that if he failed to contact the MD that the Respondent would have no choice but to effect the resignation. The Complainant rejected this further request by email of 22nd January 2016.
The Respondent said they are disappointed that the Complainant decided to resign and had no intention whatsoever of dismissing the Complainant in relation to the issue that were raised at the meeting of 11th January 2016. In fact the Respondent had invested in the Complainant by putting him up in a guesthouse for 14 nights when he was homeless and by both the MD and the Director allowing him to stay in their respective houses when needed. The Complainant stayed in the Director’s house for 56 days and the Complainant agreed to pay him the same rate as the guesthouse and suggested to share the household bills. However these payments have not been received to date. The Respondent also gave the Complainant an advance payment when he commenced work in order to put him ‘in funds’.
The Respondent said that without prejudice to the fact that the Respondent denies the allegations as set out in the Complainant Form, it was submitted that the Complainant did not make any effort to resolve the issues and therefore it was not reasonable for him to consider himself as being dismissed.
Based on the foregoing the Respondent submitted that the Complainant had not been constructively dismissed and the complaint under the Unfair Dismissals Act was not well founded and it should be rejected.
Terms of Employment (Information) Act 1994: The Respondent said the Complainant was provided with and signed a written contract of employment on 19th January 2015, the date he commenced employment.
The Respondent said that by letter of 1st December 2015, the Complainant requested that his remuneration package be altered to allow him to receive it more tax efficiently. This hand written letter states: “Further to our recent meeting ref my tax situation with regard to my deduction of tax for my accommodation allowance, I trust your prompt attention to this matter will be forthcoming.”
The Respondent said that they agreed to this request and made the changes requested by the Complainant and accordingly they amended Clauses 4 and 5 of the Complainant’s written contract of employment, and it was given to him by the Director the following weeks, at which point the Director went through it with the Complainant and he not only agreed with it but was very happy about it. A copy of the amended clauses was submitted to the hearing and this document shows that the Complainant’s annual salary was reduced from €26,000 to €21,200 and now included a subsistence allowance of €4,800 per annum.
The Respondent submitted there was no breach of the provisions of the Act by them, that the complaint was not well founded and it should be rejected.
Payment of Wages Act 1991: The Respondent said the Complainant is claiming for outstanding annual leave pay, notice pay and overtime pay and they submitted the following in respect of these claims/complaints:
Notice Pay: The Respondent said that the Complainant failed to give them notice of the termination of his employment and that therefore he is not entitled to notice payments.
Annual Leave Payments: The Respondent said the Complainant took 18 days annual leave in 2015 and they listed the dates on which these paid holidays were taken (the Complainant agreed with this information).
The Respondent said that the Complainant was entitled to 2 days outstanding annual leave in the total sum of €163.06c The Respondent said that the Complainant was given an advance on his wages together with paid accommodation in the amount of €2,355.44c (details provided) (they Complainant accepted that this was correct). The Respondent said that in accordance with Clause 22 of the Complainant’s contract of employment they deducted the annual leave pay due to the Complainant from the monies owed to them by the Complainant.
Overtime Pay: The Respondent submitted time sheets for the Complainant for the period referred to by the Complainant, from 26th November 2015 to 17th December 2015. The Respondent said that the Complainant worked 64 hours overtime and not 82 hours as alleged by him. He was due to be paid for the overtime worked after the payroll cut-off date of 13th December 2015. The overtime payments owed amounted to the gross sum of €1,426.78c. Again the Respondent said that in accordance with Clause 22 of the Complainant’s contract of employment they deducted the overtime pay due to the Complainant from the amount owed to them.
Based on the foregoing the Respondent submitted that they were not in breach of the provisions of the Act.
(I note that the Complainant accepted the accuracy of the above submissions in relation to overtime pay and annual leave pay and he said that he had been unable to get information in relation to these issues from the Respondent, he said that had he got the information provided to the hearing it would not have been necessary for him to submit the complaints/claims under the 1991 Act.)
Organisation of Working Time Act 1997: The Respondent said the Complainant worked one Sunday only in the relevant period 13th December 2015. They said that this would have been paid in the January payroll, but this additional payment was also deducted from the amount owed to them from the Complainant.
The Respondent submitted that there was no breach of the provisions of the 1997 Act, that the complaint was not well founded and it should be rejected.
The Respondent submitted that all of the complaints and claims under the 4 Acts were not well founded and they should all be rejected.
Findings and Decision:
Section 80 and Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with Section 7 of the 1977 Act.
Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaint under the Act in accordance with the relevant redress provision of the same Section of that Act.
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaint under the Act in accordance with the relevant redress provisions of the same Section of that Act.
Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaint under the Act in accordance with the relevant provisions of the same Section of the Act.
I have carefully considered all the submissions and evidence submitted to me and I have concluded as follows.
PRELIMINARY ISSUE: . In relation to the question of when the Complainant’s employment terminated or ended I have carefully considered the evidence and submissions.
I am completely satisfied that when the Complainant left the Respondent’s premises on Monday 11th January 2016, that is what he was doing leaving the premises and going home, nothing more. There is nothing in what the Complainant said or did on that day, as submitted by either party, that would lead any reasonable person to conclude that he was resigning from his job with the Respondent. Nor indeed is such a suggestion supported by the subsequent correspondence. The correspondence from the Respondent of the following day consists of two sentences, neither of which suggests that the Complainant had resigned his job with the Respondent – and indeed if the Respondent had concluded that the Complainant had in fact resigned his employment with them it is to be expected that Respondent would refer to that fact and perhaps ask him to reconsider such a decision. This correspondence from the Respondent is not that of an employer who believes that the employee has resigned from his job.
The Complainant replies to this by email of 18th January 2016 and nowhere in this detailed correspondence does the Complainant state or suggest that he has resigned his job
There is a further correspondence from the Respondent to the Complainant of 21st January 2016, which again makes no reference to any alleged resignation of his job by the Complainant – indeed the direct opposite is suggested by this correspondence in which it is stated “If you do not arrange a time and date to meet in our office to resolve the issue between you and (the Respondent) within the next 7 days we have no alternative but to terminate your employment”.
Why would an employer be inviting someone who they considered to have resigned from their employment to a meeting to resolve issues? - and of much more significance why would an employer be stating that they may have no alternative but to terminate the employment of a person who has already resigned from their employment. There could be no possible reason for an employer to tell an employee who had already terminated their own employment that they may terminate their employment, an employer would have no function in such a situation other than to confirm to the employee that they were accepting (or possibly not accepting) the resignation proffered. A resignation, just like the giving of notice by an employer must be certain and that most certainly could not be said to be the case on 11th January 2016. The Respondent’s submissions in that respect are rejected by me.
I find that the Complainant’s employment was not terminated until his email correspondence of 22nd January 2016 in which he made clear that he would not return to his place of work, would not engage with the Respondent and accordingly was terminating his employment with the Respondent with effect from that date.
Accordingly I find that the Complainant had the necessary one year of continuous of service to be covered or comprehended by the provisions of the Unfair Dismissals Act and he is entitled to have his complaint under that Act heard.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
The following are my findings and decisions in relation to the complaints under each of the 4 Acts.
Unfair Dismissals Acts 1977: CA-00004515-001: .
I note that the Complainant is claiming that he was constructively dismissed by the Respondent. I note that the burden of proof in a constructive dismissal case falls upon a complainant and the Employment Appeals Tribunal (EAT) have consistently held that this burden is a very high one for a Complainant to have to meet.
I further note that in constructive dismissal cases the Employment Appeals Tribunal (EAT) have consistently determined and held that a Complainant must exhaust all available procedures available to them within the employment and this would include informing the employer fully of the complaints being made against them and affording them the opportunity to deal with them and that failure to so do may be fatal to any claim for constructive dismissal. Plainly in the instant case the Complainant did not comply with this basic requirement, as not only did he not avail of any procedures to attempt to deal with his complaints, or make any effort whatsoever to deal with his complaints with his employer, he also resolutely refused and rebuffed at least 2 efforts by the Respondent to deal with any complaints and the Complainant made it crystal clear in language incapable of misunderstanding that he was unwilling to engage in any way with the Respondent in relation to the matter. In such circumstances the Respondent was completely denied the opportunity to attempt to resolve any issues or complaints the Complainant had.
I addition I note the Complainant states that he had an excellent relationship with the Respondent and in particular that he held the MD and his family in the greatest respect. Yet despite this excellent relationship the Complainant had with the Respondent and in particular with the MD and his family right up to 11th January 2016, he was absolutely and resolutely refusing and unwilling to engage with the Respondent in any way to resolve any issue that may have arose. This is very difficult to understand, as anything untoward that occurred on 11th January 2016 was completely out of character of the relationship prior to that date, and it is certainly not a reasonable reaction of a reasonable employee to refuse to engage in any way to attempt to deal with any problem and restore the previous excellent relationship.
Based on the foregoing I find and declare that the Complainant has not discharged the burden of proof necessary to demonstrate or prove constructive dismissal. Accordingly I must find and declare that the Complainant was not unfairly dismissed by the Respondent; that the complaint under the Unfair Dismissals Acts is not well founded: it is rejected and is not upheld.
Terms of Employment (Information) Act 1994: CA-00003515-002: .
The Complainant was submitting that the Respondent had not notified him in writing of a change in his remuneration package in breach of the provisions of Section 5 of the Act and in addition he denied that he had actually sought this change in his remuneration package which benefitted him in terms of nett income.
The Complainant submitted that it was the Respondent who proposed the change in his remuneration package, whereas the Respondent submits that it was the Complainant who sought and proposed the change. The Respondent points to the handwritten letter from the Complainant dates 01/12/15, which does support their position that the change was at the request of the Complainant. In addition I note that here was no particular reason or advantage for the Respondent to seek or make such a change, but there was a reason and a particular advantage in terms of nett or take home income for the Complainant in the change.
Based on the facts and the findings referred to above I find and declare that the Complainant did actually seek these changes and more significantly for the purposes of the instant complaint under the 1994 Act he was notified in writing by the Respondent of the change.
In accordance with the provisions of Section 7(2) of 1994 Act I find and declare that the complaint under Section 5 of the 1994 Act in relation to notification of changes is not well founded; it is rejected and it fails.
Payment of Wages Act 1991: CA-00003515-003:
The following are my findings and decisions in relation to the 4 specific complaints under the 1991 Act:
- Alleged Unpaid ‘ Wages’ from December 15 to January 2016: .
The Complainant confirmed at the Hearing that this element of the complaints referred to a tax refund and he accepted that a tax refund was not ‘wages’ as defined as defined by Section 1 of the 1991 Act and he accepted that accordingly I had no jurisdiction to hear a complaint under the Act in that respect and that I must declare that this element of the complaints is not well founded.
This element of the complaints refers to tax refunds and tax refunds are not ‘wages’ as defined in Section 1 of the Act; accordingly I must find and declare that this element of the complaints under the 1991 is not well founded; it is rejected and is not upheld.
- Notice Pay: There can be and is no entitlement to notice pay in a case such as the instant case of (alleged) constructive dismissal, where the Complainant terminated his own employment and was not available to work his minimum notice period.
Accordingly I must find and declare that the element of the complaints that refers to minimum notice payment is not well founded; it is rejected and is not upheld.
- Annual Leave Pay: I note that it was established at the hearing, and is not in dispute that the Complainant had two days accrued untaken annual leave due at the time of the termination of his employment, which equates with €163.06c.
I further note that it is not dispute by the Complainant that he had received an advance of wages, which together with paid accommodation, meant he owed the Respondent €2,355.44c.
I note that Section 5(5) of the Payment of Wages Act 1991, which deals with deductions that are excluded from the protections of the Act, i.e. deductions that are permitted under the provisions of the Act states inter alia:
“any overpayment of wages
any overpayment in respect of expenses incurred by the employee in carrying out her/his employment
a deduction made by an employer from the wages of an employee, or any payment received from an employee in pursuance of any arrangements—
(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given her/his prior consent in writing, or
(ii) to which the employee has otherwise given his prior consent in writing”
I further note that Section 22 of the Complainant’s written contract of employment signed and dated by him on 19th January 2015, states:
“ Deductions from Wages/Salary .
You herebyacknowledge and agree that the Company may deduct from any wages or salary due to you such sums as may be owing by you to the Company at any time in particular, without limitation, any over-payment by the Company to you, any amount in respect of excess holidays taken over those accrued as the date of termination of your employment or in the event that you are found responsible (after an investigation) for till shortages. You consent to any such deductions in accordance with the Payment of Wages Act 1991.”
Plainly the above quote from the Complainant’s written, signed by him, contract of employment, in force at the time of the termination of his employment, and the quotes from the Payment of Wages Act 1991 means that the deduction from the Complainant’s wages in relation to annual leave pay is not in breach of Section 5 of the 1991 Act Therefore I must find and declare that the element of the complaints in respect of annual leave pay is not well founded; it is rejected and is not upheld.
- Overtime Pay: It was established and agreed at the hearing that the amount of overtime pay due to the Complainant at the time of the termination of his employment was a gross amount of €1,426.78c.
I again refer to the points made on the previous page of this decision in respect of annual leave pay in relation to monies owed by the Complainant to the Respondent and the quotations from the Payment of Wages Act 1991 and from the Complainant’s written contract of employment signed and dated by him.
As with the element of the complaints relating to annual leave pay plainly these quotes from the Payment of Wages Act 1991 and from his contract of employment signed and dated by the Complainant plainly means that the deduction from the Complainant’s wages in relation to overtime pay due to the Complainant at the time of the termination of his employment was not in breach of the provisions of Section 5 of the 1991 Act. Therefore I must find and declare that the element of the complaints in respect of overtime pay is not well founded; it is rejected and is not upheld.
None of the complaints under the Payment of Wages Act 1991 are well founded; they are all rejected and none of them is upheld.
Organisation of Working Time Act 1997: CA-00003515-004 .
The Complainant was submitting that he had not received his entitlements in accordance with Section 14 of the Act in respect of Sunday working in the relevant period.
It was established at the hearing that the Complainant worked one Sunday only in the relevant period under consideration for the purposes of the Act. It was further established at the hearing that the Respondent generally dealt with compliance with the provisions of Section 14 of the Act in relation to Sunday working by way of the payment of a premium payment in respect of time worked on a Sunday and that this is generally paid in the following month after the time has been worked (i.e. as with salary/wages monthly in arrears)
The Respondent submits that they offset the payment due to the Complainant against monies due or owed to them as outlined in the decisions under the Payment of Wages set out above in pages 16 and 17 of these decisions and also in page 12 under the Respondent’s submissions.
However I note that there is no provision in the Organisation of Working Time Act, similar to those contained in Section 5(5) of the Payment of Wages Act 1991, quoted in page 16 of these decisions that would authorise deductions in relation to rights accrued under the Organisation of Working Time 1997.
Accordingly I find and declare that the complaint under Section 27 of the Organisation of Working Act 1997 in relation to breaches of Section 14 of that Act in relation to Sunday Working is well founded and it is upheld.
I note that it was established at the hearing and is not in dispute that the Complainant worked one Sunday (only) in the relevant period. I was not informed at the hearing the level of Sunday premium payments applied in the Company. However I was able to calculate from the information provided to me by the parties that a days pay for the Complainant was circa €100.00c and generally Sunday premium payments are a fraction or percentage of the normal rate, usually 33.33% or 50%. Taking the higher of these the loss suffered by the Complainant was approximately €50.0c.
I further note that Article 11 of the Council Directive 20o2/15/EC upon which the legislation is based states: “Member States shall lay down a system of penalties for breaches of the national provisions adopted pursuant to this Directive and shall take all the measures necessary to ensure that these penalties are applied. The penalties thus provided shall be effective, proportional and dissuasive.”
Taking into account the above, and in accordance with the provisions of Section 27(3) of the Act, I now require the Respondent to pay the Complainant compensation in the sum of €120.00c within 6 weeks of the date of this decision for breaches of his rights under Section 14 of the Act in relation to Sunday working.
Seán Reilly, Adjudication Officer
Dated: 2nd December 2016